Sabu A.A vs The Authorized Officer
2021 Latest Caselaw 142 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                       WP(C).No.135 OF 2021(N)


PETITIONER:

               SABU A.A.,
               S/O ANTONY DAVIS,
               ARAYMKALAPUTHENPARAMBIL,
               THRIKODITHANAM P.O.CHENGANASSERY.

               BY ADVS.
               SRI.B.KRISHNA MANI
               SMT.DHANUJA M.S


RESPONDENTS:

      1        THE AUTHORIZED OFFICER,
               THE FEDERAL BANK LTD, LCRD,
               KOTTAYAM DIVISION,
               KOTAYAM-686 001.

      2        THE BRANCH MANAGER,
               THE FEDERAL BANK LTD,
               CHANGANACHERRY BRANCH,
               KOTTAYAM-686 001.


               SRI. LEO GEORGE - SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 135/21
                                       2


                                 JUDGMENT

The petitioner, who admittedly is the

defaulter of a loan facility availed of from

the respondent-Bank, has approached this Court

with a rather strange request, that the Bank

be directed to permit him to sell the secured

assets one after the other, so as to obtain a

closure of the entire liability in the loan

account.

2. The learned counsel for the petitioner

- Sri.B.Krishna Mani, concedes that his client

had earlier approached this Court by filing

WP(C)No.29777/2019, but that he could not

comply with the directions therein; and that

consequently, the Bank has evicted him from

two of the secured assets which are now

intended to be put to auction soon. He,

therefore, prays that Ext.P1 notice be set

aside and the respondent-Bank be directed to

permit his client to settle the loan WPC 135/21

liability, as afore prayed for.

3. In response, Sri.Leo George - learned

Standing Counsel for the respondent-Bank,

submitted that this Writ Petition is not

maintainable since the petitioner had earlier

approached this Court, but refused to comply

with the directions therein. He contended

vehemently that the present Writ Petition is

an abuse of process and that the Bank is fully

entitled to sell the property under the

provisions of the Securitisation and

Reconstruction of Financial Assets and

Enforcement of Securities Interest Act ('the

SARFAESI Act' for brevity). He added to his

submissions by saying that if the petitioner

is desirous of securing highest amounts for

the secured assets, he is at liberty to have

his own nominees to participate in the

auction, but that this cannot give him a right

- either vested or otherwise - to claim that WPC 135/21

he should be allowed to sell the property

through a private sale. He, therefore, prayed

that this Writ Petition be dismissed.

4. On hearing the learned Standing

Counsel as afore, Sri.B.Krishna Mani submitted

that his client has approached this Court with

full sincerity and that he is desirous of

settling the account at the earliest. He,

therefore, prayed that his client be, at

least, given an opportunity of approaching the

Bank with a proper proposal, so that he can

then arrange for buyers for the property, thus

leading to the account being settled without

further prejudice to him and other owners of

the property.

5. In reply, Sri.Leo George submitted

that though there is nothing standing in the

way of the petitioner in approaching the Bank

with a proper proposal, he has not chosen so

until now but has approached this Court by WPC 135/21

urging untenable contentions. He, therefore,

submitted that if the petitioner approaches

the Bank with a proper proposal, the same will

be considered in terms of law; however, prayed

that this Court may not make any affirmative

declarations in his favour at this stage.

Taking note of the afore submissions and

since the jurisdiction of this Court in

interfering with the steps taken by the Bank

under the provisions of the SARFAESI Act is

severely proscribed, going by the judgments of

the Hon'ble Supreme Court in Union Bank of

India v. Satyawati Tondon [(2010) 8 SCC 110]

and in Authorised Officer, State Bank of

Travancore and Another v. Mathew K.C. [2018

(1) KLT 784], I order this writ petition to

the limited extent of leaving liberty to the

petitioner to approach the Bank with an

appropriate representation; in which event,

the same will be considered by the competent WPC 135/21

Authority, after affording him an opportunity

of being heard.

After I dictated this part of the

judgment, Sri.B.Krishna Mani submitted that

his client may also be given liberty to seek

that his brother be put back in possession of

one of the secured assets, since it is his

sole residential abode and further that the

Bank be directed to consider this also, when

his client makes the afore allowed

representation.

Of course, this is a liberty that is

available to the petitioner and if he chooses

to make such a request, the Bank will

certainly consider it as per law.

Sd/-

                                          DEVAN RAMACHANDRAN
      RR                                             JUDGE
 WPC 135/21



                           APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1        TRUE COPY OF THE NOTICE DATED

23.10.2018 UNDER SECTION 13(20 OF THE SECURITIZATION AND RECONSTRUCTION OF FINANCIAL ASSET AND ENFORCEMENT OF SECURITY INTEREST ACT ISSUED BY THE AUTHORIZED OFFICER

EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE DATED 21.2.2019

EXHIBIT P3 TRUE COPY OF THE PROCEEDING DATED 23.5.2020 ISSUED BY THE RESERVE BANK OF INDIA